44 PROCTOR | September 2015
High Court
Administrative law – tribunals – bias – panel
of municipal council considering destruction
of dog – panel member involved in prosecution
of dog owner
In Isbester v Knox City Council [2015] HCA 20
(10 June 2015) H was an officer of the respondent
council and responsible for coordinating local
laws. H was responsible for prosecuting the
appellant (I) in the Magistrates’ Court (Vic.) under
s29(4) of the Dog Act (Vic.) for owning a dog that
had attacked a person. I was convicted on a plea
of guilty. The council had adopted a procedure of
creating a panel to consider the separate question
under s29(12) of whether the dog should be
destroyed. H was a member of the three-person
panel (who were all relevant delegates) and
actively involved in its deliberations. The panel held
a hearing and I was heard. After the hearing panel
member/delegate K decided the dog should be
destroyed and H agreed to provide a statement
of reasons. I sought judicial review claiming the
decision was affected by bias. She failed before
the primary judge in the Supreme Court of Victoria
and before the Court of Appeal (Vic.). Her appeal
to the High Court was allowed by all members of
the court: Kiefel, Bell, Keane, Nettle JJ jointly; sim
Gageler J. The members of the joint judgment
concluded that H’s active interest as “prosecutor”
made her membership of the panel “incompatible”
with a fair hearing: Ebner v Official Trustee in
Bankruptcy (2000) 205 CLR 337. Appeal allowed.
Contempt – corporation – order that
corporation charged with contempt
produce documents
In Construction, Forestry, Mining and Energy
Union v Boral Resources (Vic.) Pty Ltd [2015]
HCA 21 (17 June 2015) Boral Resources and
others commenced proceedings in the Supreme
Court of Victoria alleging the appellant union/
corporation had acted in contempt of orders
made by the court. In the proceedings Boral
sought discovery of documents under SCR
Ord 29.07(2) relating to the employment of
certain persons. The primary Associate Justice
dismissed the application for discovery on the
basis proceedings for contempt were criminal
proceedings. This was rejected on appeal to the
primary judge who made orders for discovery.
The Court of Appeal (Vic.) refused the union
leave to appeal but it was granted special leave
to appeal this by the High Court. The High
Court dismissed the appeal: French CJ, Kiefel,
Bell, Gageler, Keane JJ jointly; sim Nettle J. The
court noted that a corporation did not have the
privilege against self-incrimination. The court
rejected the CFMEU’s characterisation of a
right to silence as being part of the criminal trial
process. The court noted that while contempt
proceedings were “accusatory”, they were not
criminal proceedings and were subject to the
civil rules of practice. Appeal dismissed.
High Court and Federal Court notes
Contract – lease – contrary to statute –
effect of illegality – statutes – illegality
In Gnych v Polish Club Limited [2015] HCA 23
(17 June 2015) the club leased certain parts
of its premises (that were licensed to serve alcohol
under the Liquor Act 2007 (NSW)) to G. Such a
lease without the approval of the Independent
Liquor and Gaming Authority was prohibited by
s92(1) of the Act. A dispute arose and G was
excluded from the premises. In response to G’s
claims for enforcement of the lease, the club
asserted that because the lease had not been
approved under s92(1)(d) of the Act the lease
was illegal and void. This was generally rejected
by the trial judge but accepted by the NSW
Court of Appeal. The club’s appeal to the High
Court was allowed by all members: French CJ,
Kiefel, Keane, Nettle JJ jointly; sim Gageler J.
Consideration of when contracts are void for
illegality. Appeal allowed.
Criminal law – provocation – the ‘ordinary man’
In Lindsay v The Queen [2015] HCA 16
(6 May 2015) after a long session of drinking
alcohol the deceased N made sexual advances to
L (a male Aboriginal) at L’s home and in front of L’s
family. L killed N. At trial where provocation was an
issue, L was convicted of murder. On appeal the
Court of Criminal Appeal SA concluded there were
deficiencies in the directions as to provocation but
in light of the court’s firm view as to contemporary
attitudes, no ordinary person would have lost
control as L had and the errors as to provocation
had not resulted in an appealable error. L’s appeal
to the High Court was allowed by all members:
French CJ, Kiefel, Bell, Keane JJ; sim Nettle J. The
High Court reviewed the functions of the trial judge
and juries in applying the “ordinary man” test.
Appeal allowed; retrial ordered.
Migration – visas – cancellation on character
grounds – review by AAT – applicant limited
to evidence given two days before hearing –
unexpected evidence of previously unknown
children given at AAT hearing – whether AAT
precluded from considering circumstances
of these children
In Uelese v Minister for Immigration and Border
Protection [2005] HCA 15 (6 May 2015) Mr U’s
visa was cancelled on character grounds in
September 2012 under s500 of the Migration Act
1958 (Cth). The delegate was informed U had
three children with his partner Ms F. Mr U sought
review by the AAT. Provisions of the Migration Act
provided Mr U was not able to rely on written or
oral evidence unless notice of it had been given
to the Minister two days before the hearing and
the review was to be completed in 84 days. A
direction under the Act required that the interests
of all children must be taken into account. In
cross-examination Ms F disclosed that there had
been breaks in the relationship and that Mr U
was the father of two other children by Ms V. The
AAT concluded that as this evidence was given
without the notice required by s500(6H) it would
be disregarded and affirmed the decision. Mr U’s
appeals to the Federal Court were dismissed but
his appeal to the High Court was allowed by all
members: French CJ, Kiefel, Bell, Keane JJ jointly;
sim Nettle J. The court observed that s500(6H)
did not affect the power of the AAT to grant
adjournments and a resumed hearing was
a “hearing”. Appeal allowed; decisions of Full
Court of the Federal Court and primary judge
set aside; decision of AAT quashed.
Migration – refugees – ‘threat to liberty’ –
any temporary detention
In Minister for Immigration and Border Protection
v WZAPN [2015] HCA 22 (17 June 2015) the
High Court concluded the reference to “a threat to
liberty” in s91R(2)(a) of the Migration Act 1958 (Cth)
did not include the prospect of future episodes of
temporary detention: French CJ, Kiefel, Bell, Keane
JJ; sim Gageler J. Appeal allowed.
Native title – effect of wartime occupation of land
In Queensland v Congoo [2015] HCA 17
(13 May 2015) the High Court concluded
exclusive occupation of land in World War II by
military officers (exercising power to do so under
regulations made under the National Security Act
1939 (Cth)) to use the land for live firing exercises
did not extinguish native title: French CJ with
Keane J; sim Gageler J; contra Hayne, Kiefel,
Bell JJ. Appeal from like conclusion of Full Court
of the Federal Court dismissed.
Negligence – duty of care – motor vehicle
accident – passenger deceased – passenger’s
brother claiming damages for nervous shock on
hearing of accident – whether driver owes duty
to passenger’s brother for nervous shock
In King v Philcox [2015] HCA 19 (10 June 2015)
a passenger was killed in a motor vehicle
collision at an intersection. P (the passenger’s
brother) passed through, or was diverted
around, the intersection several times shortly
after the collision but was unaware his brother
was involved. On being told his brother had
died, P suffered nervous shock from guilt that
he had not stopped. P sued K for damages for
nervous shock. The primary judge found P had
suffered mental harm but was not entitled to
damages for nervous shock as either he was
not present at the time of the accident under
s53(1)(a) of the Civil Liability Act 1936 (SA) or
he suffered the injury when he was told of the
death. P’s appeal was upheld by the Full Court
of the Supreme Court (SA). K’s appeal to the
High Court was allowed by all members: French
CJ, Kiefel and Gageler JJ jointly; sim Keane
and Nettle JJ. The High Court concluded the
Full Court had erred in finding P was present
at the scene and allowed the appeal. The joint
judgment proceeded to consider whether a
duty of care could be owed to siblings. Appeal
allowed and decision of Full Court set aside
(except as to costs orders).
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